Sunday, December 23, 2012

Can You Be Fired for Expressing Your Views?


Crystal Dixon is an African American woman who was formerly employed as an Associate Vice President for Human Resources at the University of Toledo in Toledo, Ohio.  She had been employed by the University in increasingly responsible positions over a six-year period. 

In 2008, Dixon read an editorial in the local newspaper, the Toledo Free Press, with which she disagreed.  In it, the Editor-in-Chief of the newspaper compared the civil rights movement with the gay rights movement, expressing sympathy for the gay rights struggle. The author then focused on a purported denial of healthcare benefits to same-sex couples at the University.

In response, Dixon submitted her own Op-Ed column, which was printed. It expressed her personal opinions, and did not identify her official position at the University.  In her Op-Ed, Dixon expressed the position that being African-American was permanent and unchangeable, whereas being gay was a choice. She commented on the University health care issue, noting, “the university is working diligently to address this issue in a reasonable and cost-efficient manner, for all employees, not just one segment.”

A month later, Dixon was fired.  The letter noted that the public position she took contradicted University policy and caused loss in confidence in her as an administrator.

In court, Dixon claimed that the University fired her in retaliation for her protected speech, in violation of the First Amendment. It should be noted that this case involved First Amendment protections because Dixon was an employee of a state university.  She, like employees of the Federal government, was a public employee. A public employee's speech enjoys First Amendment protection when two factors occur: (1) the speech must involve “a matter of public concern,” and (2) the speaker's free speech interests outweigh the governmental entity's interests as an employer. 

The parties agreed that Dixon’s Op-Ed involved a matter of public concern.  So the question was whether Dixon's free speech interests outweighed the University's interests as an employer.  The University argued that its interests as an employer were greater, because Dixon was a policymaking employee who was discharged because of speech related to her policy views.  In contrast, Dixon argued that she never said the University's policies were wrong or should not be enforced. She pointed to her years of success in implementing the University’s policies.

One University official testified in his deposition that he knew of Dixon's personal opinions prior to the publication of the article, and that those opinions never had any adverse effect on Dixon's ability to perform her job at the highest level.  Nevertheless, it was his view that by expressing those opinions in public, she was no longer able to do her job.

The court agreed with the University, concluding that Dixon fell into a category of policymaking positions that have been delegated significant discretionary authority to carry out the institution's policy goals.  Dixon had authority to hire and fire.  Her job description required her to recommend, implement and oversee University policy.  It also gave her authority to represent the University before the EEOC and the Ohio Civil Rights Commission.

The court also agreed that Dixon was discharged because her speech was related to her policy views.  The University's strategic plan relied on a commitment to diversity "in all its dimensions."  The University's anti-harassment policy protected sexual orientation and gender identity.  The University had also recently enacted a "safe places program" that encouraged faculty and staff to open their workspaces to be safe places for LGBT individuals.

The court rejected Dixon's argument that she never said the University's policies were wrong or should not be enforced.  In the court’s view, her op-ed exposed her view that gays are not entitled to the same protections as those who participated in the civil-rights movement.  This went against the University's policies and thus removed her speech from First Amendment protection.  Dixon v. University of Toledo, No. 12-3218 (6th Cir. Dec. 17, 2012).

Arguably, this decision stands for the proposition that in balancing public employer and employee rights under the First Amendment, courts are finding a public employer's commitment to non-discrimination based on sexual orientation as an important enough interest that the public employer can take action against an employee whose conduct, based on her anti-gay beliefs, threatens to undermine the employer's non-discrimination policy.  On the other hand, Dixon was expressing an unpopular, conservative opinion, and civil libertarians should be concerned when an otherwise fully qualified public employee is terminated for expressing views that are not “politically correct.”  

The law firm of Kalijarvi, Chuzi, Newman & Fitch aggressively protects the rights of individuals whose employment may be in jeopardy based on expressing their views. 

- partner Elizabeth L. Newman contributed this blog post.  You can reach her at enewman@kcnlaw.com.

Tuesday, November 27, 2012

Who Is A Supervisor?


If your “team leader” calls you racist names, can you sue your employer for harassment?  The answer depends on whether that team leader is your supervisor.  What if that team leader does not have the power to hire, discipline or fire you, but does decide what shifts you work and prepares your performance evaluation?  This week the Supreme Court considered a case that may resolve the question of who is a supervisor under Title VII of the Civil Rights Act of 1964.  The case is Vance v. Ball State University (Docket No. 11-556).

Maetta Vance had worked for about ten years as a “catering assistant” in the banquet and catering department at Ball State University in Muncie, Indiana.  She claimed that the Catering Specialist, who was responsible for supervising and providing leadership for kitchen assistants, picked on her because she was the only black person on the staff.  She alleged that this supervisor threatened her, physically accosted her in an elevator, repeatedly made racially charged remarks - including references to the Ku Klux Klan, Sambo and Buckwheat - and slapped her. This employee’s job description said she had a duty to “supervise” and to “direct” and “oversee” others.  But she did not have the formal authority to take an explicit job action.    

In previous cases, the Supreme Court has held that a “supervisor” is an individual with direct authority over another employees’ daily actions. Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) .  According to the Equal Employment Opportunity Commission, a supervisor is someone with the capacity to control a co-worker’s daily activities on the job. But in this case, the lower court ruled that for purposes of suing a company for the actions of one of its employees, a “supervisor” is limited to those with formal authority to hire, fire, promote, transfer, or discipline a worker.

Hearing the case on Monday, Nov. 26, 2012, the Supreme Court justices tried out some hypothetical descriptions of actions an employee might take, and asked the lawyers whether those actions meant the employee was a supervisor.  Justice Roberts asked whether an employee would qualify as a supervisor if that worker had the power to decide what background music would play throughout the day, and used a threat to play music that a co-worker did not like — country music, or, perhaps, hard rock — in order to coerce that colleague to go on a date.  Justice Alito wondered if it would have been enough for a co-worker to assign Vance to chop onions all day, or at least to do just chopping all day, onions and other items, too.


In most cases the lawyers responded, "It depends."

If the Supreme Court rules that the EEOC definition should prevail, the case may expand employers’ liability for the unlawful conduct of their employees.



Partner Elizabeth Newman contributed this blog post. 

Tuesday, October 30, 2012

Do You Get Time Off Work To Vote?


Election Day is Tuesday Nov. 6, 2012.  Do you get time off to vote? 

Employees’ right to time off to vote depends on whether they are Federal employees or private sector workers.  If private sector, it depends on state law.  Thirty-one states require employers to give workers time off to vote, although the statutes vary widely in terms of the time provided, whether that time is paid or unpaid and whether the employee must give advance notice. 

FEDERAL EMPLOYEES: Whether you get time off depends on whether the polls are open at least three hours either before or after your regular work hours. If not, you are entitled to an excused absence (paid leave) that will permit you to report for work three hours after the polls open or leave from work three hours before the polls close, whichever requires the lesser amount of time off. The US Office of Personnel Management provides this explanatory example:

If an employee is scheduled to work from 8:00 a.m. to 4:30 p.m. and the employee's polling  place is open from 7:00 a.m. to 8:00 p.m., the employee should not be granted excused absence for voting, since the employee would still have at least 3 hours after the end of his or her work schedule to vote. However, if an employee is scheduled to work from 8:00 a.m. to 4:30 p.m. and the employee's polling place is open from 7:00 a.m. to 7:00 p.m., the employee may be granted ½ hour of excused absence from 4:00 p.m. to 4:30 p.m., if requested.

PRIVATE SECTOR EMPLOYEES: Your rights to time off for voting depend on the state.  Below are the rights in the 31 states that grant leave.  If your state is not listed, it means you have no specific state law that grants you the right to time off to vote.  Also, check with your boss as to whether you must request this leave in advance:

ALABAMA: You must give “reasonable notice,” and can take up to one hour unless the polls are open for two hours before your shift or one hour after your shift.  The law does not specify whether this leave is paid or unpaid.

ALASKA: You may take as much paid time off as needed to vote unless the polls are open for two consecutive hours before or after your shift. 

ARIZONA:   You may take up to three hours of paid leave if there are less than three consecutive hours between the opening of the polls and the beginning of your shift, or between the end of your shift and the closing of the polls.

CALIFORNIA: You may take up to two hours of paid leave if you do not have “sufficient time” outside of working hours to vote.  You mus take this leave before or after your tour of duty, not in the middle, unless mutually agreed.

COLORADO: You may take up to two hours of paid leave unless the polls are open for three hours of non-work time.

GEORGIA: You may take up to two hours leave unless polls are open two hours before or after your tour of duty. The law does not specify whether the leave is paid or unpaid.

HAWAII: You may take up to two hours of paid leave, excluding any lunch or rest periods unless the polls are open for two consecutive hours (excluding lunch and rest periods) during which you are not working.

ILLINOIS: You may take two hours of paid leave during working hours if your tour of duty begins less than two hours after the opening of the polls and ends less than two hours before the closing of the polls.

IOWA: You may take up to three consecutive hours of paid leave, unless polls are open for three consecutive hours during which you are not required to be at work. If the polls are open for less than three hours during which employee is not working, you may take leave up to an amount which, when added to the time the polls are open, equals three consecutive hours. The employer may specify when leave may be taken.

KANSAS: You may take paid leave for up to two consecutive hours unless the polls are open for two or more consecutive hours before or after your shift

KENTUCKY: You may take a reasonable time period, but not more than four hours. The law does not specify whether the leave is paid or unpaid.

MARYLAND: You may have up to two hours of paid leave. You must provide proof that you voted or attempted to vote. Get the approved form from the Maryland Board of Elections.

MASSACHUSETTS: You may take paid leave during the first two hours after the polls open.

MINNESOTA: You may take paid leave for the time necessary to appear at your polling place, cast a ballot, and return to work.

MISSOURI: You may take paid leave of up to three hours unless you have three successive hours while the polls are open in which you are not working.

NEBRASKA: You may take up to two hours of paid leave unless you have two consecutive non-work hours to vote while the polls are open.

NEVADA: You may take one hour of paid leave if the distance between your job and your polling place is two miles or less.  You may take two hours if the distance is more than two miles but not more than ten miles.  You may take three hours if the distance is more than ten miles.

NEW MEXICO: You may take up to two hours of paid leave during work time unless the polls are open either two hours before or three hours after you are scheduled to work.

NEW YORK: You may take up to two hours of paid leave, unless the polls are open for four consecutive hours either before or after your shift.

NORTH DAKOTA:   There is only a voluntary policy, whereby employers are "encouraged" to provide time off to vote when an employee's regular work schedule conflicts with the times polls are open.

OHIO: You are allowed a reasonable amount of unpaid leave to vote on election day.

OKLAHOMA: You may take up to two hours or more of paid leave if distance requires; must show proof of voting.

SOUTH DAKOTA: You may take up to two hours of paid leave unless the polls are open for two or more consecutive hours outside of your work hours.

TENNESSEE: You may take up to three hours of paid leave unless the polls are open for three or more consecutive hours either prior to or after your shift.

TEXAS: You may take paid leave unless the polls are open for two or more consecutive hours outside of your working hours.

UTAH: You may take paid leave of up to two hours unless the polls are open for three or more hours outside of your working hours.

WASHINGTON: You may take up to two hours of paid leave only if you have insufficient time to get an absentee ballot and the polls are not open for two or more free hours outside of your working hours.

WEST VIRGINIA: You may take up to three hours of paid leave.  But if you neglected to vote when the polls were open for three consecutive non-working hours, your wages can be deducted for time actually absent.

WISCONSIN: You may take up to three hours of unpaid leave.

WYOMING: You may take up to one hour of paid leave, excluding meal breaks, if you actually voted, unless the polls are open three or more consecutive hours outside of your working hours.


Partner Elizabeth L. Newman prepared this blog entry. 

Tuesday, October 16, 2012

Rights of Disabled Workers to Job Transfer

If you can’t do your specific job because you are disabled, do you have the right to be placed in another vacant position?  What if there’s another candidate who is more qualified for the vacant position?  In the DC Circuit, as well as the Seventh and Tenth Circuits, the Courts have held that employer's duty to accommodate a disabled employee now includes reassignment to an equivalent, vacant position for which the employee meets the minimum qualifications, even if a more qualified candidate has applied, so long as doing so would not pose an undue hardship.

The most recent case was decided last month by the 7th Circuit Court of Appeals in Chicago, EEOC v. United Airlines.  The lead plaintiff in that case was Joe Boswell, a United mechanic at San Francisco International Airport who had a brain tumor.  At first, he took leave and sought medical treatment. His doctors concluded that he would be unable to do his job as a mechanic.  But United did not offer him another job.  He applied for numerous other open positions at the airline, but he was consistently turned down.  So United  put him on involuntary leave. 

United had a policy whereby disabled workers had to compete for vacant positions.  They got preferential treatment over non-disabled workers for vacant positions.  That meant that if the two workers were equally qualified for a job, the disabled worker would win.  The policy did not afford automatic placement into those positions.  In other words, if the non-disabled candidate was better qualified, the disabled candidate would lose out.

The EEOC argued that United’s policy violated the Americans with Disabilities Act (“ADA”). It contended that the ADA required employers to do more - they must move workers losing their jobs because of disability to vacant jobs for which they are qualified.  According to the EEOC, it did not matter that there was a more qualified candidate.

The 7th Circuit agreed:
(We) hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.
The 7th Circuit sent the case back to U.S. District Judge Harry Leinenweber in Chicago to review United's policy under this standard. 

The case is Equal Employment Opportunity Commission v. United Airlines Inc, 7th U.S. Circuit Court of Appeals, No. 11-1774.

If you feel that your employer has discriminated against you because of a disability, please contact Kalijarvi, Chuzi, Newman & Fitch for a confidential consultation.

Partner Elizabeth L. Newman contributed this blog entry.

Wednesday, August 8, 2012

Facebook: A Land Mine for Employees and Applicants?

Can your boss fire you because you clicked the “Like” button on Facebook for his political opponent?  Can your boss, or a potential employer, require that you provide your Facebook password so that the company can see what you have posted on-line?  These are two current legal questions that demonstrate that social media can be a land mine for employees. 

In the Facebook “Like” button case, the plaintiffs were employees of the Sheriff’s Department in the City of Hampton, Virginia. While the Sheriff was running for reelection, the plaintiffs posted comments on and “Liked” his opponent’s Facebook page. After the Sheriff won reelection, he fired those employees who had supported his opponent. Bland v. Roberts, on Appeal from the United States District Court for the Eastern District of Virginia, No. 4:11-cv-00045-RAJ-TEM (Jackson, J.).

The legal question is whether the activity of “Liking” someone on Facebook is protected speech under the First Amendment.  The lower court said no, and the case is now on appeal to the US Court of Appeals for the Fourth Circuit.  The plaintiffs are arguing that “Liking” a political candidate on Facebook – just like holding a campaign sign – is constitutionally protected speech. It is verbal expression, as well as symbolic expression. Clicking the “Like” button announces to others that the user supports, approves, or enjoys the content being “Liked.” Merely because “Liking” requires only a click of a button does not mean that it does not warrant First Amendment protection. 

Employers are going even further.  Not only are they perusing applicants’ public Facebook accounts, they are demanding full access.  In some cases, employers are asking job seekers for their Facebook passwords.  In another case, when applicants came for their job interviews, the interviewer sat them down in front of a computer and asked them to log into their accounts so that the interviewer could inspect all of the “private” pages.  This practice has been dubbed “shoulder surfing.”

What is a job-seeker to do?  Even if agreeing to provide the password is considered voluntary, applicants who want the job may feel compelled to “volunteer” the information in order to get the job.

Civil liberties groups like the ACLU have expressed strong condemnation of the practice as an invasion of privacy.  So far two states, Maryland and Illinois, have passed legislation that bars employers from asking for employees’ or candidates’ social media passwords, and other states are considering proposed legislation.  Senators Chuck Schumer and Richard Blumenthal have asked the Justice Department to look into whether these practices violate the Stored Communication Act or the Computer Fraud and Abuse Act.

Even so, the legislation only goes so far - it does not stop bosses from viewing information that isn't restricted by privacy settings on a website.  The Huffington Post reports that research has shown that 75 percent of employers require their human resources departments to look at online profiles before offering an applicant a job, and that a third of employers have turned down applicants based on those searches.  http://www.huffingtonpost.com/2012/08/01/ illinois- facebook-passwor_0_n_1730396.html. 

This post was prepared by partner Elizabeth Newman.  You may reach her at enewman@kcnlaw.com

Monday, June 25, 2012

You Boss May Be Monitoring Your Personal E-Mail

Yes, your employer can monitor your e-mail - even your personal e-mail account - if you access it through your employer’s computer. For private sector employers, there is no law preventing this behavior. For the federal government, the same appears to be the case. On June 20, 2012, the Office of Management and Budget issued a memo to all agency chief information officers and general counsels warning federal agencies that monitoring their employees’ personal e-mail communications could violate the law if the intent is to retaliate against whistleblowers. See “Agencies Cautioned on E-mail Monitoring,” Washington Post, June 22 2012, p. B4. Left unsaid is the apparent fact that agencies may monitor employees’ personal e-mail for other purposes, such as to see how much time employee are spending on non-work tasks. According to the article, “It is unclear how widespread the practice of e-mail monitoring is.”

The issue arose after U.S. Special Counsel Carolyn Lerner issued guidelines that encourage agencies to ensure that their monitoring policies and practices do not interfere with or discourage employees from disclosing wrongdoing, including whistleblowing to the Office of Special Counsel or an agency Inspector General. The memo notes that while lawful agency monitoring of employee communications may serve a legitimate purpose, it must not chill employees from disclosing wrongdoing. See http://www.osc.gov/documents/press/2012/press/pr12_11.pdf.

Lerner was focusing on a potentially unconstitutional practice by the Food and Drug Administration (FDA), in which the agency secretly monitored the personal G-mail accounts of a group of scientists who had warned members of Congress that the agency was approving medical devices that they considered dangerous to patients. screening and other purposes. Copies of the e-mails show that, for a two year period of time, the FDA intercepted communications with congressional staffers and draft versions of whistleblower complaints complete with editing notes in the margins. The agency also took electronic snapshots of the computer desktops of the FDA employees and reviewed documents they saved on the hard drives of their government computers.

Six of the employees have filed suit alleging not that their privacy was violated, but that the FDA violated the due process clause of the Fifth Amendment by taking their private property - the emails - without their consent. See Hardy et al v. Shuren, Civil Action No. 1:11-cv-01739-RBW (District Court for the District of Columbia).

-- This entry was written by partner Elizabeth L. Newman

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml. 

Friday, June 8, 2012

EEOC Rules: Discrimination Against the Transgendered is Illegal

Although there still is no federal law barring discrimination against employees based on their sexual orientation, the United States Equal Employment Opportunity Commission recently moved one step closer to securing equal protection under the law for all employees in this country, regardless of sexual orientation.  On April 20, 2012, the Commission held that complaints of discrimination based on “gender identity, change of sex, and/or transgender status” form cognizable claims of discrimination under Title VII of the Civil Rights Act.  The case is Mia Macy, Complainant, v. Eric Holder, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms, and Explosives), Agency. 

The Complainant, Mia Macy, was a transgender woman and police detective who was trained and certified as a National Integrated Ballistic Information Network operator and BrassTrax ballistics investigator.  In approximately December 2010, while she was still presenting as a man, she applied for a position at a crime laboratory operated by the Agency, the Bureau of Alcohol, Tobacco, Firearms, and Explosives.  After a series of conversations with the Director of the Laboratory, she was told that she would be hired for the position, pending completion of a background check.  On approximately April 3, 2011, the Agency learned of Ms. Macy’s impending name and gender change from Complainant’s contractor.  Just 5 days after the Agency learned of this, they informed the contractor that she would not be hired for the position due to federal budget cuts. 

Based on the quick change in position after learning of her name and gender change, Ms. Macy contacted the Agency Equal Employment Opportunity Office, alleging that she was denied the position in part because of her transgender status.  The Agency initially countered by saying, in contradiction to its previously cited reason, that the position was filled by another employee because that employee was further along in the clearance process.  Unfortunately, even with the shifting reasons, the Agency EEO office still chose to dismiss her claim, stating that the EEOC could not adjudicate claims of discrimination based on transgender status.  After overcoming assorted procedural hurdles, Ms. Macy appealed the matter directly to the EEOC. 

On Appeal, the EEOC overturned the dismissal and remanded the case for investigation.  It held that Title VII, the federal law prohibiting sex discrimination, “proscribes gender discrimination, and not just discrimination on the basis of biological sex... [.]”  They further held that when an employer discriminates against a person because that person is transgendered, the employer has engaged in disparate treatment related to the sex of the victim.  Based on this reasoning, and a string of cases supporting its position, the Commission ultimately held that discrimination against a transgendered individual because that person is transgender is discrimination barred by Title VII. 

We at Kalijarvi, Chuzi, Newman & Fitch, P.C., applaud the EEOC for making such a courageous decision in this case.  Ms. Macy is entitled to equal opportunity in employment under the law, regardless of her race, sex, creed, or sexual orientation, and this decision brings her one step closer to ultimately reaching that goal.

Thanks to associate Stephen Fung for writing this month's blog entry.

Thursday, April 12, 2012

No Monetary Damages for Violations of the Privacy Act

How much must the government pay an individual when it reveals his HIV status without his knowledge or permission? According to the Supreme Court, the answer is - nothing. That is, on March 28, 2012, the Supreme Court ruled that victims of Privacy Act violations are not entitled to damages for the emotional and mental distress they are likely to suffer as a result of the violation. The case is Federal Aviation Administration v. Cooper.

The victim, Mr. Cooper, was a recreational pilot who was HIV-positive. He had not revealed this information when he applied for a pilot’s license, but he did tell the Social Security Administration (SSA) when he applied for disability payments. Without Mr. Cooper’s knowledge, the SSA disclosed Mr. Cooper’s HIV-positive status to the Department of Transportation, which was investigating whether medically unfit candidates were getting pilot’s licenses. Mr. Cooper contended in court that the SSA violated the Privacy Act, and that he suffered mental and emotional distress at learning of the disclosure of his health status, which he had kept private and considered deeply personal.

The issue before the Court was the meaning of provision in the Privacy Act entitling victims to recover “actual damages” that result from disclosures of their private information. The majority of the Court held that the definition of the phrase “actual damages” was limited to such things as lost wages or out-of-pocket loss, not compensation for the mental and emotional distress they suffer. Because there was no such express provision, the Court concluded that the government had not waived sovereign immunity for claims for mental and emotional distress. In dissent, Justice Sonia Sotomayor decried the decision as being contrary to precedent and common sense, and stated that it “cripples the act’s core purpose of redressing and deterring violations of privacy interests.”

We agree with Justice Sotomayor. Congress intended the Privacy Act to provide robust protections for individual privacy. These protections are only effective if the Privacy Act is enforced. Furthermore, mental and emotional damages are likely the most common harm suffered by those who have had their closely held, private information revealed without their consent. In fact, it is unlikely that a victim of a Privacy Act violation will suffer out-of-pocket monetary damages. Mental distress is precisely the kind of harm that results from a Privacy Act violation. By limiting the damages that can recovered to pecuniary, or out of pocket, losses, the Court’s decision has all but eliminated the already inadequate incentives for victims to bring this kind of unlawful conduct by the government to light. The fewer individuals who are willing and/or able to bring such claims, the more diluted the deterrent effect of the law will be.

To the extent the decision has a silver lining it is that the damage can be undone. The basis for the Court’s opinion is that, in order for victims of Privacy Act violations to recover damages for emotional and mental distress “Congress must speak unequivocally,” and “[h]ere … it did not.” Accordingly, Congress can remedy the situation and should do so by amending the law to expressly provide that emotional and mental harms are compensable under the Act.

Thank you to associate Tracy Gonos for writing this blog entry.

Wednesday, March 14, 2012

Are Religious Employers Exempt from the Anti-Discrimination Laws?

In January, the Supreme Court issued a decision finding that the First Amendment bar discrimination lawsuits filed against religious employers when the employee meets the definition of a “minister.” Writing for a unanimous Court, Chief Justice Roberts discussed the roots of the Establishment clause, and concluded that allowing a lawsuit against a Lutheran primary school by a teacher who had been “called” to ministry by the Church which ran the school would violate the First Amendment’s prohibition against government interference with a religious organization.

The complaint against Hosanna-Tabor Evangelical Lutheran Church and School was initially brought by the EEOC on behalf of Cheryl Perich, the terminated employee, and alleged that Ms. Perich was terminated from her position as a teacher at the school due to discrimination based on a disability (narcolepsy) and reprisal for threatening to take legal action after the school refused to allow her to return to work.

This decision was pretty startling when first announced - was the Supreme Court really holding that religious employers are exempt from Title VII, the ADEA and the ADA as long as they claim the aggrieved employee is a “minister”? Given the vast array of religiously-affiliated employers in the United States, this decision seemed likely to deprive thousands of teachers, doctors and nurses of critical employment protections on the basis of an easily-asserted affirmative defense.

However, a closer review of the facts suggests the decision is less sweeping than would appear at first glance. Frankly, it does appear that Ms. Perich can reasonably be considered a “minister” within the common meaning of that word. She was not merely a teacher at the school, but had undergone several years of religious training by the Church specifically to gain certification as a “Minister of Religion, Commissioned.” After earning these qualifications, she was regarded as a “called” teacher. By contrast, teachers at the school who lacked this training and certification were called “lay” teachers.

As the Court noted, in her capacity as a “called” teacher Ms. Perich provided religious instruction to her students during classes four days a week, as well as teaching them standard non-religious school subjects. During religion classes, she led her students in prayer. She regularly attended and occasionally led weekly religious services for the student body. The Court also noted that Ms. Perich had claimed federal tax benefits which are reserved for members of the clergy.

After successfully teaching kindergarten and fourth grade as a “called teacher,” Ms. Perich developed narcolepsy and had to take disability leave, starting in June 2004. When she attempted to return to work in January 2005, the school informed her that the teacher it had hired to replace her would finish the rest of the school year. The school also questioned her readiness to return to work, despite her medical clearance. The situation swiftly deteriorated with Ms. Perich insisting that she should be reinstated and the school insisting that she accept a “peaceful release.” The school board voted to rescind her “calling” mere hours after she told the school principal that she had consulted an attorney and intended to assert her legal rights.

The trial court granted summary judgment based on the employer’s assertion of the “ministerial exception,” but was reversed by the Sixth Circuit, which held that Ms. Perich was not a “minister” within the meaning of First Amendment case law. A unanimous Supreme Court agreed with the trial court, holding that Ms. Perich was in fact a “minister” and therefore the School could not be required by a court to reinstate her, nor could her claim of wrongful termination - even if due to otherwise unlawful discrimination or reprisal - be heard.

The Court avoided creating a specific test for “minister,” finding only that Ms. Perich unquestionably was one based on all of the circumstances, which included her religious training, certification, job title, and duties. (It is unclear how much weight the Court gave to her prior tax filings claiming ministerial exemptions.) The Court also avoided ruling on whether lawsuits challenging adverse employment actions other than a termination would also be barred by the First Amendment. After all, the “ministerial exception” is based on the First Amendment’s prohibition on government intrusion on the freedom of religious institutions to choose, that is, to hire and fire ministers as they choose.

Does that mean that a religious employer would also be immune from a minister’s suit that alleged harassment or some other theory of employment discrimination? Or, if the Church and a minister enter into a contract governing their relationship, is the Church free to breach that contract without fear of a lawsuit? We will undoubtedly find out.

The full decision can be found at http://www.supremecourt.gov/opinions/11pdf/10-553.pdf


Thursday, February 9, 2012

EEOC on Disability Law and Job Prerequisites

On November 17, 2011, the Equal Employment Opportunity Commission issued an informal discussion letter addressing how the Americans with Disabilities Act (ADA) applies to qualification standards for jobs. This particular question arose in the context of individuals with disabilities who cannot obtain high school diplomas because their disabilities prevent them from passing the requisite tests. In turn, this prevents them from obtaining jobs that require high school diplomas.

As the EEOC explained:

[u]nder the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation.

In sum, an employer needs to be certain that a job truly requires a high school diploma and should not impose an arbitrary high school diploma requirement. If the essential functions of the position can be performed by an individual without a high school diploma, the employer may be in trouble.

Even if a high school diploma is job related and consistent with business necessity, if an applicant informs an employer that she does not have a diploma because of a disability, then she is entitled to a determination of whether she can perform the essential duties of the job with or without accommodation. This can be accomplished through prior relevant work experience or by being provided the opportunity to show they can perform the job. Before taking these steps, an employer is permitted to request appropriate documentation of a disability that prevented the applicant from obtaining a high school diploma.

Despite this, an employer does not have to prefer the disabled candidate over a better qualified non-disabled candidate. The best-qualified candidate may still be chosen.

--- Partner Elaine L. Fitch contributed this blog post.